Gavin Grimm’s struggle to access restrooms which align with his gender identity brought the plight of transgender students to the fore of national consciousness. With it came scrutiny of the judiciary’s historical failure to understand transgender individuals’ place in the law. The trend in cases like G.G. ex rel. Grimm v. Gloucester County School Board and Whitaker ex rel. Whitaker v. Kenosha Unified School District No. 1 Board of Education is reliance on equality theory and the law of sex stereotyping. And yet sex-stereotyping law does not mesh soundly with equality theory. Equality theory eradicates gendered difference—but the law of sex stereotyping values and proscribes difference and stereotype in equal measure.
This Note argues instead for a synthesized burdens test to accommodate transgender students both in school facilities and in doctrine. In doing so, it harmonizes the doctrinal inconsistency of sex-stereotyping law with the everyday reality of transgender students.
Sick and Tired of Hearing about the Damn Bathrooms,
Chi.-Kent L. Rev.
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